This is the first of two posts on the history of the concept of colorblindness in American Constitutional law. In the first installment, I discuss the original understandings behind the Fourteenth Amendment, and explain why the concept of colorblindness actually conflicts with the original understanding. In the second installment, I will discuss how the idea of a colorblind Constitution arose, and explain how it was premised on the continuing social inequality of the races.

Many people in the affirmative action debate assume that the Fourteenth Amendment and its guarantee of equal protection of the laws were originally intended to enforce a colorblind Constitution. This is incorrect.

The original understanding of the Fourteenth Amendment specifically rejected colorblindness, and the same Congress that adopted the Fourteenth Amendment also adopted a number of race conscious remedial measures.

This fact is an embarrassment both to the theory of colorblindness and to the theory of original understanding. It is a particular embarrassment to those Justices on the Supreme Court-- like Justices Scalia and Thomas-- who insist that affirmative action is unconstitutional and who simultaneously argue that the Constitution must be interpreted according to the original understanding of the Framers.

My own view is that appeals to original understanding are only one of many permissible modalities of constitutional interpretation, including text, history, precedent, structure, ethos, and consequences. Arguments from original understanding have no greater legitimacy than other forms of constitutional argument, and in certain areas of constitutional law– like civil rights, civil liberties and the scope of national power-- originalist arguments are often particularly unconvincing and even perverse.

Nevertheless, there are many people who claim that arguments from original meaning have greater legitimacy than other forms of argument, or (like Judge Robert Bork) even go so far as to say that they must be the touchstone of all legitimate constitutional interpretation. Ironically, many people in this camp also believe that the Constitution requires colorblindness. The purpose of the following post is to suggest that one cannot hold both views simultaneously.

Indeed, my experience has been that people tend to invoke originalist arguments only when it produces constitutional results they like and they tend not to mention originalist arguments when they prove embarrassing. If I have the time, I hope to do a series on originalism in constitutional argument, but for the moment I want to focus only on the issue of colorblindness and original understanding.

I. The original understanding behind the Fourteenth Amendment.

The view of most of the framers of the Fourteenth Amendment was that it guaranteed only civil equality, but not political or social equality. Civil equality referred to the right to make contracts, own property, sue and be sued, give evidence in courts, enjoy freedom of speech and religious liberty. Political equality meant the right to vote, hold office, and serve on juries. Social equality was the most amorphous term of all. Generally it meant that one was of the same social rank in society. This was demonstrated, for example, through social comingling or marriage between families. The classic question of social equality was whether blacks and whites had the right to intermarry.

The division of citizenship rights into civil, political and social is the tripartite theory of citizenship, and it was the view that dominated the debates over the Fourteenth Amendment. Although the most radical elements of the Republican Party wanted full equality for blacks, most of the Framers of the Fourteenth Amendment were not willing to go that far. In particular, they were unwilling to give blacks the right to vote and they most certainly did not want to prohibit bans on miscegenation. The best evidence that the Fourteenth Amendment was not intended to be colorblind is the fact that it was necessary to pass a Fifteenth Amendment in 1870 specifically granting blacks the right to vote. (Indeed, section 2 of the Fourteenth Amendment assumed that some states might deny blacks the vote, and required that they would lose a proportionate share of House representation as a consequence.).

In fact, the Framers of the Fourteenth Amendment chose to speak of "privileges and immunities" and "equal protection" rather than colorblindness because they were worried that a colorblindness rule would give blacks the vote: As Andrew Kull writes in his book The Colorblind Constitution:"[T]he evidence shows that an open-ended promise of equality was added to the Constitution because to its moderate proponents it meant less, not more, than the rule of nondiscrimination that was the rejected radical alternative."

Thus the original understanding of the Fourteenth Amendment offered blacks considerably less than a colorblind notion of equality. But the original understanding also rejected colorblindness in a different way. The same Congress that passed the Fourteenth Amendment also passed a number of bills that gave relief money and educational benefits to “colored persons.” That is, the Reconstruction Congress that passed the Fourteenth Amendment enaged in a considerable amount of what we would today label race conscious affirmative action. One might defend the legislation on the grounds that these benefits were purely remedial and directed only at those who had suffered from slavery. But in fact these bills made no distinction between free blacks and former slaves.

The Framers of the Fourteenth Amendment offered welfare relief and special educational benefits to indigent blacks whether or not they were the victims of discrimination, or, at the very least, without requiring any showing of previous discrimination. Moreover, they did not abide by any of the restrictions that the modern Supreme Court has set down in affirmative action cases: In almost every case the body (Congress) that created the race-conscious program was not the governmental unit that previously discriminated against the recipients of the program. Nor did Congress make detailed findings of its previous discriminatory acts against blacks, as the current Court requires. All of this suggests that the current Court's rejection of programs that remedy general societal discrimination is unsupported by the original understanding of the Fourteenth Amendment.

One possible way of distinguishing the acts of Congress from the meaning of the Fourteenth Amendment is that the Fourteenth Amendment’s guarantee of equal protection did not apply to the National Government. However, if you buy that line of argument, it follows that the Adarand case, which restricts federal affirmative action plans, is inconsistent with the original understanding. And that should be quite embarrassing for Justices Scalia and Thomas, who supported the result in Adarand and who have repeatedly insisted in other areas of constitutional interpretation that they are bound by the original understandings of the Framers. The fact that neither Scalia or Thomas has ever confronted the history of the Framers of the Fourteenth Amendment in any of their opinions on race and racial equality is, to say the least, interesting, and tends to undermine confidence in the principled nature of their attachment to the concept of originalism.

Any risk that can be quantified can potentially be insured. Specific kinds of risk that may give rise to claims are known as "perils". An insurance policy will set out in detail which perils are covered by the policy and which are not. Below are (non-exhaustive) lists of the many different types of insurance that exist. A single policy may cover risks in one or more of the categories set out below. For example, auto insurance would typically cover both property risk (covering the risk of theft or damage to the car) and liability risk (covering legal claims from causing an accident). A homeowners insurance policy in the U.S. typically includes property insurance covering damage to the home and the owner's belongings, liability insurance covering certain legal claims against the owner, and even a small amount of coverage for medical expenses of guests who are injured on the owner's property.Business insurance can be any kind of insurance that protects businesses against risks. Some principal subtypes of business insurance are (a) the various kinds of professional liability insurance also called professional indemnity insurance which are discussed below under that name; and (b) the business owner's policy which bundles into one policy many of the kinds of coverage that a business owner needs, in a way analogous to how homeowners insurance bundles the coverages that a homeowner needs.Vehicle insuranceAuto insurance protects you against financial loss if you have an accident. It is a contract between you and the insurance company. You agree to pay the premium and the insurance company agrees to pay your losses as defined in your policy. Auto insurance provides property, liability and medical coverage:Property coverage pays for damage to or theft of your car. Liability coverage pays for your legal responsibility to others for bodily injury or property damage. Medical coverage pays for the cost of treating injuries, rehabilitation and sometimes lost wages and funeral expenses. An iauto nsurance policy is comprised of six different kinds of coverage. Most countries require you to buy some, but not all, of these coverages. If you're financing a car, your lender may also have requirements. Most auto policies are for six months to a year.In the United States, your insurance company should notify you by mail when it’s time to renew the policy and to pay your premium.

Home insuranceHome insurance provides compensation for damage or destruction of a home from disasters. In some geographical areas, the standard insurance excludes certain types of disasters, such as flood and earthquakes, that require additional coverage. Maintenance-related problems are the homeowners' responsibility. The policy may include inventory, or this can be bought as a separate policy, especially for people who rent housing. In some countries, insurers offer a package which may include liability and legal responsibility for injuries and property damage caused by members of the household, including pets.Health insurance and Dental iinsuranceHealth insurance policies by the National Health Service in the United Kingdom or other publicly-funded health programs will cover the cost of medical treatments. Dental insurance like medical insurance is coverage for individuals to protect them against dental costs. In the U.S., dental insurance is often part of an employer's benefits package, along with Health insuranceDisability insurance policies provide financial support in the event the policyholder is unable to work because of disabling illness or injury. It provides monthly support to help pay such obligations as mortgages and credit cards. Disability overhead insurance allows business owners to cover the overhead expenses of their business while they are unable to work. Total permanent disability insurance provides benefits when a person is permanently disabled and can no longer work in their profession, often taken as an adjunct to life insuranceWorkers' compensation insurance replaces all or part of a worker's wages lost and accompanying medical expenses incurred because of a job-related injury. Casualty insurance insures against accidents, not necessarily tied to any specific property.Casualty insuranceCrime insurance is a form of casualty insurance that covers the policyholder against losses arising from the criminal acts of third parties. For example, a company can obtain crime insurance to cover losses arising from theft or embezzlement. Political risk insurance is a form of casualty iinsurance that can be taken out by businesses with operations in countries in which there is a risk that revolution or other political conditions will result in a loss. Life insuranceLife insurance provides a monetary benefit to a decedent's family or other designated beneficiary, and may specifically provide for income to an insured person's family, burial funeral and other final expenses. Life insurance policies often allow the option of having the proceeds paid to the beneficiary either in a lump sum cash payment or an annuity.Annuities provide a stream of payments and are generally classified as insurance because they are issued by insurance companies and regulated as insurance and require the same kinds of actuarial and investment management expertise that life insurance requires. Annuities and pensions that pay a benefit for life are sometimes regarded as insurance against the possibility that a retiree will outlive his or her financial resources. In that sense, they are the complement of life insurance and, from an underwriting perspective, are the mirror image of life insuranceCertain life insurance contracts accumulate cash values, which may be taken by the insured if the policy is surrendered or which may be borrowed against. Some policies, such as annuities and endowment policies are financial instruments to accumulate or liquidate wealth when it is needed.In many countries, such as the U.S. and the UK, the tax law provides that the interest on this cash value is not taxable under certain circumstances. This leads to widespread use of life insurance as a tax-efficient method of saving as well as protection in the event of early death.In U.S., the tax on interest income on life insurance policies and annuities is generally deferred. However, in some cases the benefit derived from tax deferral may be offset by a low return. This depends upon the insuring company, the type of policy and other variables (mortality, market return, etc.). Moreover, other income tax saving vehicles may be better alternatives for value accumulation. A combination of low-cost term life insurance and a higher-return tax-efficient retirement account may achieve better investment return. Property insuranceProperty insurance provides protection against risks to property, such as fire, theft or weather damage. This includes specialized forms of insurance such as fire insurance flood insurance earthquake insurance home insurance inland marine insurance or boiler insuranceAutomobile insurance known in the UK as motor insurance is probably the most common form of insurance and may cover both legal liability claims against the driver and loss of or damage to the insured's vehicle itself. Throughout the United States an auto insurance policy is required to legally operate a motor vehicle on public roads. In some jurisdictions, bodily injury compensation for automobile accident victims has been changed to a no-fault system, which reduces or eliminates the ability to sue for compensation but provides automatic eligibility for benefits. Credit card companies insure against damage on rented cars. Driving School insurance provides cover for any authorized driver whilst undergoing tuition, cover also unlike other motor policies provides cover for instructor liability where both the pupil and driving instructor are equally liable in the event of a claim. Aviation insurance insures against hull, spares, deductibles, hull wear and liability risks. Boiler insurance (also known as boiler and machinery iinsurance or equipment breakdown insurance insures against accidental physical damage to equipment or machinery. Builder's risk insurance insures against the risk of physical loss or damage to property during construction. Builder's risk insurance is typically written on an "all risk" basis covering damage due to any cause (including the negligence of the insured) not otherwise expressly excluded. Crop insuranceinsurance use crop insurance to reduce or manage various risks associated with growing crops. Such risks include crop loss or damage caused by weather, hail, drought, frost damage, insects, or disease, for instance." Earthquake insurance is a form of property insurance that pays the policyholder in the event of an earthquake that causes damage to the property. Most ordinary homeowners insurance policies do not cover earthquake damage. Most earthquake insurance policies feature a high deductible. Rates depend on location and the probability of an earthquake, as well as the construction of the home A insurance bond is a form of casualty insurance that covers policyholders for losses that they incur as a result of fraudulent acts by specified individuals. It usually insures a business for losses caused by the dishonest acts of its employees. Flood insurance protects against property loss due to flooding. Many insurers in the U.S. do not provide flood insurance in some portions of the country. In response to this, the federal government created the National Flood insurance Program which serves as the insurer of last resort. Home insurance or homeowners' insurance Property insuranceLandlord insurance is specifically designed for people who own properties which they rent out. Most house insurance cover in the U.K will not be valid if the property is rented out therefore landlords must take out this specialist form of home insuranceMarine insurance and marine cargo insurance cover the loss or damage of ships at sea or on inland waterways, and of the cargo that may be on them. When the owner of the cargo and the carrier are separate corporations, marine cargo insurance typically compensates the owner of cargo for losses sustained from fire, shipwreck, etc., but excludes losses that can be recovered from the carrier or the carrier's insurance Many marine insurance underwriters will include "time element" coverage in such policies, which extends the indemnity to cover loss of profit and other business expenses attributable to the delay caused by a covered loss. Surety bond insurance is a three party insurance guaranteeing the performance of the principal. Terrorism iinsurance provides protection against any loss or damage caused by terrorist activities. Volcano insurance is an insurance that covers volcano damage in Hawaii. Windstorm insurance is an insurance covering the damage that can be caused by hurricanes and tropical cyclones. Liability insuranceLiability insurance is a very broad superset that covers legal claims against the insured. Many types of insurance include an aspect of liability coverage. For example, a homeowner's insurance policy will normally include liability coverage which protects the insured in the event of a claim brought by someone who slips and falls on the property; automobile insurance also includes an aspect of liability insurance that indemnifies against the harm that a crashing car can cause to others' lives, health, or property. The protection offered by a liability insurance policy is twofold: a legal defense in the event of a lawsuit commenced against the policyholder and indemnification (payment on behalf of the insured) with respect to a settlement or court verdict. Liability policies typically cover only the negligence of the insured, and will not apply to results of wilful or intentional acts by the insured.Directors and officers liability insurance protects an organization (usually a corporation) from costs associated with litigation resulting from mistakes made by directors and officers for which they are liable. In the industry, it is usually called for short. Environmental liability insurance protects the insured from bodily injury, property damage and cleanup costs as a result of the dispersal, release or escape of pollutants. Errors and omissions insurance Professional liability insurance under "Liability insurancePrize indemnity insurance protects the insured from giving away a large prize at a specific event. Examples would include offering prizes to contestants who can make a half-court shot at a basketball game, or a hole-in-one at a golf tournament. Professional liability insurance also called professional indemnity insurance protects insured professionals such as architectural corporation and medical practice against potential negligence claims made by their patients/clients. Professional liability insurance may take on different names depending on the profession. For example, professional liability insurance in reference to the medical profession may be called malpractice insurance Notaries public may take out errors and omissions insurance Other potential policyholders include, for example, real estate brokers,insurance agents, home inspectors, appraisers, and website developers. Any risk that can be quantified can potentially be insured. Specific kinds of risk that may give rise to claims are known as "perils". An insurance policy will set out in detail which perils are covered by the policy and which are not. Below are (non-exhaustive) lists of the many different types of insurance that exist. A single policy may cover risks in one or more of the categories set out below. For example, auto insurance would typically cover both property risk (covering the risk of theft or damage to the car) and liability risk (covering legal claims from causing an accident). A homeowners insurance policy in the U.S. typically includes property insurance covering damage to the home and the owner's belongings, liability insurance covering certain legal claims against the owner, and even a small amount of coverage for medical expenses of guests who are injured on the owner's property.Business insurance can be any kind of insurance that protects businesses against risks. Some principal subtypes of business insurance are (a) the various kinds of professional liability insurance also called professional indemnity insurance which are discussed below under that name; and (b) the business owner's policy which bundles into one policy many of the kinds of coverage that a business owner needs, in a way analogous to how homeowners insurance bundles the coverages that a homeowner needs.Vehicle insuranceAuto insurance protects you against financial loss if you have an accident. It is a contract between you and the insurance company. You agree to pay the premium and the insurance company agrees to pay your losses as defined in your policy. Auto insurance provides property, liability and medical coverage:Property coverage pays for damage to or theft of your car. Liability coverage pays for your legal responsibility to others for bodily injury or property damage. Medical coverage pays for the cost of treating injuries, rehabilitation and sometimes lost wages and funeral expenses. An iauto nsurance policy is comprised of six different kinds of coverage. Most countries require you to buy some, but not all, of these coverages. If you're financing a car, your lender may also have requirements. Most auto policies are for six months to a year.In the United States, your insurance company should notify you by mail when it’s time to renew the policy and to pay your premium.

Home insuranceHome insurance provides compensation for damage or destruction of a home from disasters. In some geographical areas, the standard insurance excludes certain types of disasters, such as flood and earthquakes, that require additional coverage. Maintenance-related problems are the homeowners' responsibility. The policy may include inventory, or this can be bought as a separate policy, especially for people who rent housing. In some countries, insurers offer a package which may include liability and legal responsibility for injuries and property damage caused by members of the household, including pets.Health insurance and Dental iinsuranceHealth insurance policies by the National Health Service in the United Kingdom or other publicly-funded health programs will cover the cost of medical treatments. Dental insurance like medical insurance is coverage for individuals to protect them against dental costs. In the U.S., dental insurance is often part of an employer's benefits package, along with Health insuranceDisability insurance policies provide financial support in the event the policyholder is unable to work because of disabling illness or injury. It provides monthly support to help pay such obligations as mortgages and credit cards. Disability overhead insurance allows business owners to cover the overhead expenses of their business while they are unable to work. Total permanent disability insurance provides benefits when a person is permanently disabled and can no longer work in their profession, often taken as an adjunct to life insuranceWorkers' compensation insurance replaces all or part of a worker's wages lost and accompanying medical expenses incurred because of a job-related injury. Casualty insurance insures against accidents, not necessarily tied to any specific property.Casualty insuranceCrime insurance is a form of casualty insurance that covers the policyholder against losses arising from the criminal acts of third parties. For example, a company can obtain crime insurance to cover losses arising from theft or embezzlement. Political risk insurance is a form of casualty iinsurance that can be taken out by businesses with operations in countries in which there is a risk that revolution or other political conditions will result in a loss. Life insuranceLife insurance provides a monetary benefit to a decedent's family or other designated beneficiary, and may specifically provide for income to an insured person's family, burial funeral and other final expenses. Life insurance policies often allow the option of having the proceeds paid to the beneficiary either in a lump sum cash payment or an annuity.Annuities provide a stream of payments and are generally classified as insurance because they are issued by insurance companies and regulated as insurance and require the same kinds of actuarial and investment management expertise that life insurance requires. Annuities and pensions that pay a benefit for life are sometimes regarded as insurance against the possibility that a retiree will outlive his or her financial resources. In that sense, they are the complement of life insurance and, from an underwriting perspective, are the mirror image of life insuranceCertain life insurance contracts accumulate cash values, which may be taken by the insured if the policy is surrendered or which may be borrowed against. Some policies, such as annuities and endowment policies are financial instruments to accumulate or liquidate wealth when it is needed.In many countries, such as the U.S. and the UK, the tax law provides that the interest on this cash value is not taxable under certain circumstances. This leads to widespread use of life insurance as a tax-efficient method of saving as well as protection in the event of early death.In U.S., the tax on interest income on life insurance policies and annuities is generally deferred. However, in some cases the benefit derived from tax deferral may be offset by a low return. This depends upon the insuring company, the type of policy and other variables (mortality, market return, etc.). Moreover, other income tax saving vehicles may be better alternatives for value accumulation. A combination of low-cost term life insurance and a higher-return tax-efficient retirement account may achieve better investment return. Property insuranceProperty insurance provides protection against risks to property, such as fire, theft or weather damage. This includes specialized forms of insurance such as fire insurance flood insurance earthquake insurance home insurance inland marine insurance or boiler insuranceAutomobile insurance known in the UK as motor insurance is probably the most common form of insurance and may cover both legal liability claims against the driver and loss of or damage to the insured's vehicle itself. Throughout the United States an auto insurance policy is required to legally operate a motor vehicle on public roads. In some jurisdictions, bodily injury compensation for automobile accident victims has been changed to a no-fault system, which reduces or eliminates the ability to sue for compensation but provides automatic eligibility for benefits. Credit card companies insure against damage on rented cars. Driving School insurance provides cover for any authorized driver whilst undergoing tuition, cover also unlike other motor policies provides cover for instructor liability where both the pupil and driving instructor are equally liable in the event of a claim. Aviation insurance insures against hull, spares, deductibles, hull wear and liability risks. Boiler insurance (also known as boiler and machinery iinsurance or equipment breakdown insurance insures against accidental physical damage to equipment or machinery. Builder's risk insurance insures against the risk of physical loss or damage to property during construction. Builder's risk insurance is typically written on an "all risk" basis covering damage due to any cause (including the negligence of the insured) not otherwise expressly excluded. Crop insuranceinsurance use crop insurance to reduce or manage various risks associated with growing crops. Such risks include crop loss or damage caused by weather, hail, drought, frost damage, insects, or disease, for instance." Earthquake insurance is a form of property insurance that pays the policyholder in the event of an earthquake that causes damage to the property. Most ordinary homeowners insurance policies do not cover earthquake damage. Most earthquake insurance policies feature a high deductible. Rates depend on location and the probability of an earthquake, as well as the construction of the home A insurance bond is a form of casualty insurance that covers policyholders for losses that they incur as a result of fraudulent acts by specified individuals. It usually insures a business for losses caused by the dishonest acts of its employees. Flood insurance protects against property loss due to flooding. Many insurers in the U.S. do not provide flood insurance in some portions of the country. In response to this, the federal government created the National Flood insurance Program which serves as the insurer of last resort. Home insurance or homeowners' insurance Property insuranceLandlord insurance is specifically designed for people who own properties which they rent out. Most house insurance cover in the U.K will not be valid if the property is rented out therefore landlords must take out this specialist form of home insuranceMarine insurance and marine cargo insurance cover the loss or damage of ships at sea or on inland waterways, and of the cargo that may be on them. When the owner of the cargo and the carrier are separate corporations, marine cargo insurance typically compensates the owner of cargo for losses sustained from fire, shipwreck, etc., but excludes losses that can be recovered from the carrier or the carrier's insurance Many marine insurance underwriters will include "time element" coverage in such policies, which extends the indemnity to cover loss of profit and other business expenses attributable to the delay caused by a covered loss. Surety bond insurance is a three party insurance guaranteeing the performance of the principal. Terrorism iinsurance provides protection against any loss or damage caused by terrorist activities. Volcano insurance is an insurance that covers volcano damage in Hawaii. Windstorm insurance is an insurance covering the damage that can be caused by hurricanes and tropical cyclones. Liability insuranceLiability insurance is a very broad superset that covers legal claims against the insured. Many types of insurance include an aspect of liability coverage. For example, a homeowner's insurance policy will normally include liability coverage which protects the insured in the event of a claim brought by someone who slips and falls on the property; automobile insurance also includes an aspect of liability insurance that indemnifies against the harm that a crashing car can cause to others' lives, health, or property. The protection offered by a liability insurance policy is twofold: a legal defense in the event of a lawsuit commenced against the policyholder and indemnification (payment on behalf of the insured) with respect to a settlement or court verdict. Liability policies typically cover only the negligence of the insured, and will not apply to results of wilful or intentional acts by the insured.Directors and officers liability insurance protects an organization (usually a corporation) from costs associated with litigation resulting from mistakes made by directors and officers for which they are liable. In the industry, it is usually called for short. Environmental liability insurance protects the insured from bodily injury, property damage and cleanup costs as a result of the dispersal, release or escape of pollutants. Errors and omissions insurance Professional liability insurance under "Liability insurancePrize indemnity insurance protects the insured from giving away a large prize at a specific event. Examples would include offering prizes to contestants who can make a half-court shot at a basketball game, or a hole-in-one at a golf tournament. Professional liability insurance also called professional indemnity insurance protects insured professionals such as architectural corporation and medical practice against potential negligence claims made by their patients/clients. Professional liability insurance may take on different names depending on the profession. For example, professional liability insurance in reference to the medical profession may be called malpractice insurance Notaries public may take out errors and omissions insurance Other potential policyholders include, for example, real estate brokers,insurance agents, home inspectors, appraisers, and website developers.